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Exhibit 1.1
EXECUTION COPY
4,555,270 SHARES
ILLUMINA, INC.
SHARES OF COMMON STOCK
($.01 PAR VALUE)
PLACEMENT AGENT AGREEMENT
May 10, 2004
SG COWEN & CO., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Illumina,
Inc., a Delaware corporation (the "COMPANY"), proposes to sell
to the Purchasers, pursuant to the terms of
this Placement Agent Agreement (this
"AGREEMENT") and the Subscription
Agreements in the form of Exhibit A attached
hereto (the "SUBSCRIPTION AGREEMENTS")
entered into with the Purchasers
identified therein (each a "PURCHASER" and,
collectively, the "PURCHASERS"), an
aggregate of 4,555,270 shares of Common
Stock, $.01 par value (the "COMMON
STOCK"), of the Company. The aggregate of
4,555,270 shares so proposed to be
sold is hereinafter referred to as the
"STOCK." The Company hereby confirms its
agreement with SG Cowen & Co., LLC ("SG
COWEN") as follows (certain terms used
herein are defined in Section 13
hereof):
1. AGREEMENT TO ACT AS
PLACEMENT AGENT; PLACEMENT OF SECURITIES. On the basis
of the representations, warranties and
agreements of the Company herein
contained, and subject to all the terms and
conditions of this Agreement:
(a)
The Company
hereby authorizes SG Cowen to act as its exclusive agent
(in such
capacity, the "PLACEMENT AGENT") to solicit offers for the
purchase
of all or part of the Stock from the Company in connection with
the
proposed offering of the Stock (the "OFFERING"). Until the earlier
of
the
Closing Date or the termination of this Agreement, the Company
shall
not,
without the prior consent of the Placement Agent, solicit or
accept
offers to
purchase Stock otherwise than through the Placement Agent.
(b)
The Placement
Agent agrees, as agent of the Company, to use its
commercially reasonable efforts to solicit offers to purchase the
Stock
from the
Company on the terms and subject to the conditions set forth in
the Base
Prospectus (as defined below) and the Prospectus Supplement (as
defined
below). The Placement Agent shall make commercially reasonable
efforts to
assist the Company in obtaining performance by each Purchaser
whose
offer
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to
purchase Stock has been solicited by the Placement Agent and
accepted
by the
Company, but the Placement Agent shall not, except as otherwise
provided
in this Agreement, be obligated to disclose the identity of any
potential
purchaser or have any liability to the Company in the event any
such
purchase is not consummated for any reason. Under no
circumstances
will the
Placement Agent be obligated to purchase any Stock for its own
account
and, in soliciting purchases of Stock, the Placement Agent
shall
act solely
as the Company's agent and not as principal. Notwithstanding
the
foregoing and except as otherwise provided in Section 1(c), it
is
understood
and agreed that the Placement Agent (or its affiliates) may,
solely at
its discretion and without any obligation to do so, purchase
Stock as
principal; provided, however, that any such purchases by the
Placement
Agent (or its affiliates) shall be fully disclosed to the
Company
(including the identity of such purchaser) and approved by the
Company in
accordance with Section 1(c).
(c)
Subject to the
provisions of this Section 1, offers for the purchase
of Stock
may be solicited by the Placement Agent as agent for the
Company
at such
times and in such amounts as the Placement Agent deems
advisable.
The
Placement Agent shall communicate to the Company, orally or in
writing,
each reasonable offer to purchase Stock received by it as agent
of the
Company. The Company shall have the sole right to accept offers
to
purchase
the Stock and may reject any such offer, in whole or in part.
(d)
The purchases of
the Stock by the Purchasers shall be evidenced by
the
execution of the Subscription Agreements by each of the parties
thereto.
(e)
As compensation
for services rendered, on the Closing Date (as
defined
below) the Company shall pay to the Placement Agent by wire
transfer
of immediately available funds to an account or accounts
designated
by the Placement Agent, an amount equal to six percent (6.0%)
of the
gross proceeds received by the Company from the sale of the
Stock
on such
Closing Date.
(f)
No Stock which
the Company has agreed to sell pursuant to this
Agreement
shall be deemed to have been purchased and paid for, or sold by
the
Company, until such Stock shall have been delivered to the
Purchaser
thereof
against payment by such Purchaser. If the Company shall default
in
its
obligations to deliver Stock to a Purchaser whose offer it has
accepted,
the Company shall indemnify and hold the Placement Agent
harmless
against any loss, claim or damage arising from or as a result
of
such
default by the Company.
2. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY AND ITS SUBSIDIARIES. The
Company and its subsidiaries represent and
warrant to, and agree with, the
Placement Agent and the Purchasers
that:
(a)
The Company
meets the requirements for use of Form S-3 under the
Securities
Act of 1933, as amended (the "SECURITIES ACT"), and has filed
with the
Securities and Exchange Commission (the "COMMISSION") a
registration statement on such Form (Registration File No.
333-111496),
which
became
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effective
as of April 14, 2004, for the registration under the Securities
Act of the
Stock. Such registration statement meets the requirements set
forth in
Rule 415(a)(1)(x) under the Securities Act and complies in all
material
respects with said Rule. The Company will file with the
Commission
pursuant to Rule 424(b) under the Securities Act, and the rules
and
regulations (the "RULES AND REGULATIONS") of the Commission
promulgated thereunder, a supplement to the form of prospectus
included in
such
registration statement relating to the placement of the Stock and
the
plan of
distribution thereof and has advised the Placement Agent of all
further
information (financial and other) with respect to the Company
required
to be set forth therein. Such registration statement, including
the
exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "REGISTRATION STATEMENT"; such prospectus in
the
form in
which it appears in the Registration Statement is hereinafter
called the
"BASE PROSPECTUS"; and the supplemented form of prospectus, in
the form
in which it will be filed with the Commission pursuant to Rule
424(b)
(including the Base Prospectus as so supplemented) is
hereinafter
called a
"PROSPECTUS SUPPLEMENT." Any reference herein to the
Registration
Statement, the Base
Prospectus or the Prospectus Supplement shall be
deemed to
refer to and include the documents incorporated by reference
therein
(the "INCORPORATED DOCUMENTS") pursuant to Item 12 of Form S-3
which were
filed under the Securities Exchange Act of 1934, as amended
(the
"EXCHANGE ACT"), on or before the date of this Agreement, or
the
issue date
of the Base Prospectus or the Prospectus Supplement, as the
case may
be; and any reference herein to the terms "amend," "amendment"
or
"supplement" with respect to the Registration Statement, the
Base
Prospectus
or the Prospectus Supplement shall be deemed to refer to and
include
the filing of any document under the Exchange Act after the
date
of this Agreement, or
the issue date of the Base Prospectus or the
Prospectus
Supplement, as the case may be, deemed to be incorporated
therein by
reference. All references in this Agreement to financial
statements
and schedules and other information which is "contained,"
"included," "described," "set forth" or "stated" in the
Registration
Statement,
the Base Prospectus or the Prospectus Supplement (and all other
references
of like import) shall be deemed to mean and include all such
financial
statements and schedules and other information which is or is
deemed to
be incorporated by reference in the Registration Statement, the
Base
Prospectus or the Prospectus Supplement, as the case may be. No
stop
order suspending
the effectiveness of the Registration Statement or the
use of the
Base Prospectus or the Prospectus Supplement has been issued,
and no
proceeding for any such purpose is pending or has been
initiated
or, to the
Company's knowledge, is threatened by the Commission.
(b)
The Registration
Statement (and any further documents to be filed
with the
Commission) contains all exhibits and schedules as required by
the
Securities Act. Each of the Registration Statement and any
post-effective amendment thereto, at the time it became
effective,
complied
in all material respects with the Securities Act and the
Exchange
Act and
the applicable Rules and Regulations and did not and, as
amended
or supplemented, if applicable,
will not, contain any untrue statement of
a material
fact or omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading. The
Base
Prospectus and the Prospectus
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Supplement, each as of its respective date, comply in all
material
respects
with the Securities Act and the Exchange Act and the applicable
Rules and
Regulations. Each of the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and will not
contain as of
the date
thereof any untrue statement of a material fact or omit to
state
a material
fact necessary in order to make the statements therein, in
light of
the circumstances under which they were made, not misleading.
The
Incorporated Documents, when they were filed with the
Commission,
conformed
in all material respects to the requirements of the Exchange
Act
and the applicable Rules and
Regulations, and none of such documents, when
they were
filed with the Commission, contained any untrue statement of a
material
fact or omitted to state a material fact necessary to make the
statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Base Prospectus or Prospectus
Supplement,
when such
documents are filed with the Commission, will conform in all
material
respects to the requirements of the Exchange Act and the
applicable
Rules and Regulations, as applicable, and will not contain any
untrue
statement of a material fact or omit to state a material fact
necessary
to make the statements therein not misleading. Notwithstanding
the
foregoing, the Company makes no representations or warranties as
to
information, if any, contained in or omitted from the
Prospectus
Supplement
or any amendment thereof or supplement thereto in reliance upon
and in
conformity with information furnished in writing to the Company
by
or on
behalf of the Placement Agent specifically for use in the
Registration Statement or the Prospectus Supplement, which
information the
parties
hereto agree is limited to the Placement Agent's Information as
defined in
Section 15. No post-effective amendment to the Registration
Statement
reflecting any facts or events arising after the date thereof
which
represent, individually or in the aggregate, a fundamental change
in
the
information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with
the
Commission
in connection with the transaction contemplated hereby that (x)
have not
been filed as required pursuant to the Securities Act or (y)
will
not be
filed within the requisite time period. There are no contracts
or
other
documents required to be described in the Base Prospectus or
Prospectus
Supplement, or to be filed as exhibits or schedules to the
Registration Statement, which have not been described or filed
as
required.
(c)
The Company has
delivered, or will as promptly as practicable
deliver,
to the Placement Agent complete conformed copies of the
Registration Statement and of each consent and certificate of
experts
filed as a
part thereof, and conformed copies of the Registration
Statement
(without exhibits) and the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at
such
places as
the Placement Agent reasonably requests. Neither the Company
nor
any of its
directors and officers has distributed and none of them will
distribute, prior to the Closing Date, any offering material in
connection
with the
offering and sale of the Stock other than the Base Prospectus,
the
Prospectus Supplement, the Registration Statement, copies of
the
documents
incorporated by reference therein and any other materials
permitted
by the Securities Act.
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(d)
The Company and
each of its subsidiaries have been duly incorporated
and are
validly existing as corporations or other legal entities in
good
standing
(or the equivalent thereof, if any) under the laws of their
respective
jurisdictions of incorporation, are duly qualified to do
business
and are in good standing (or the equivalent thereof, if any) as
foreign
corporations in each jurisdiction in which their respective
ownership
or lease of property or the conduct of their respective
businesses
requires such qualification, and have all corporate power and
authority
necessary to own or hold their respective properties and to
conduct
the businesses in which they are engaged, except where the
failure
to be so
qualified and in good standing or have such power or authority
would not
have, singularly or in the aggregate, a material adverse effect
on the
condition (financial or otherwise), results of operations,
business,
properties or prospects of the Company and its subsidiaries
taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(e)
The Stock to be
issued and sold by the Company hereunder and under
the
Subscription Agreements has been duly and validly authorized and,
when
issued and
delivered against payment therefor as provided herein, will be
duly and
validly issued, fully paid and nonassessable and free of any
preemptive
or similar rights. The Stock conforms to the description
thereof
contained in the Base Prospectus and the Prospectus Supplement.
(f)
As of the date
of this Agreement and as of the Closing Date, the
Company
has an authorized capitalization as set forth in the Base
Prospectus
and the Prospectus Supplement, all of the issued and
outstanding shares of capital stock of the Company have been duly
and
validly
authorized and issued, are fully paid and non-assessable, have
been
issued in compliance with federal and state securities laws,
and
conform to
the description thereof contained in the Base Prospectus and
the
Prospectus Supplement. None of the outstanding shares of Common
Stock
was issued
in violation of any preemptive rights, rights of first refusal
or other
similar rights to subscribe for or purchase securities of the
Company.
There are no authorized or outstanding options, warrants,
preemptive
rights, rights of first refusal or other rights to purchase, or
equity or
debt securities convertible into or exchangeable or exercisable
for, any
capital stock of the Company or any of its subsidiaries that
have
been
granted by the Company other than as set forth in the Base
Prospectus
and the
Prospectus Supplement.
(g)
All the
outstanding shares of capital stock of each subsidiary of
the
Company have been duly authorized and validly issued, are fully
paid
and
nonassessable and, except to the extent set forth in the Base
Prospectus
and the Prospectus Supplement, are owned by the Company
directly
or indirectly through one or more wholly-owned subsidiaries,
free
and clear
of any claim, lien, encumbrance, security interest, defect or
restriction upon voting or transfer or any other claim of any
kind
("LIENS").
(h)
The Company has
the full right, power and authority to enter into
this
Agreement and each of the Subscription Agreements and to perform
and
to
discharge its obligations hereunder and thereunder; and each of
this
Agreement
and each of the Subscription Agreements has been duly
5
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authorized, executed and delivered by the Company, and constitutes
a valid
and
binding obligation of the Company enforceable against the Company
in
accordance
with its terms.
(i)
The execution,
delivery and performance of this Agreement and the
Subscription Agreements by the Company and the consummation of
the
transactions contemplated hereby and thereby will not conflict with
or
result in
a breach or violation of any of the terms or provisions of, or
constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement
or other agreement or instrument to which the Company or any of
its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the
Company or
any of its subsidiaries is subject, nor will such actions
result in
any violation of the provisions of the charter or by-laws of
the
Company or
any of its subsidiaries or any statute, law, rule or regulation
or any judgment, order or decree
of any court or governmental agency or
body
having jurisdiction over the Company or any of its subsidiaries
or
any of
their properties or assets.
(j)
There is no
franchise, contract, lease, instrument or other document
of a
character required by the Securities Act or the Rules and
Regulations
to be
described in the Base Prospectus and the Prospectus Supplement,
or
to be
filed as an exhibit to the Registration Statement, which is not
described or
filed as required; and all statements summarizing any such
franchises, contracts, leases, instruments or other documents or
legal
matters
contained in the Registration Statement are accurate and
complete
in all
material respects. Other than as described in the Base
Prospectus
and the
Prospectus Supplement, no such franchise, contract, lease,
instrument
or other document has been suspended or terminated for
convenience or default by the Company or any of the other parties
thereto,
the
Company has not sent or received any communication regarding
intent
not to
renew any such franchise, contract, lease, instrument or other
document,
and the Company has not received notice or any other knowledge
of any
such pending or threatened suspension, termination or
non-renewal,
except for
such pending or threatened suspensions, terminations or
non-renewals that would not reasonably be expected to, singularly
or in
the
aggregate, have a Material Adverse Effect.
(k)
All existing
minute books of the Company and each of its
subsidiaries, including all existing records of all meetings and
actions
of the
board of directors (including, Audit, Compensation,
Nomination/Corporate Governance and other board committees) and
stockholders of the Company through the date of the latest meeting
and
action
(collectively, the "CORPORATE RECORDS") have been made available
to
the
Placement Agent and counsel for the Placement Agent. All such
Corporate
Records are complete and accurately reflect, in all material
respects,
all transactions referred to in such Corporate Records. There
are no
material transactions, agreements or other actions of the
Company
that are
not properly approved and/or recorded in the Corporate Records.
(l)
No consent,
approval, authorization, filing with or order of or
registration with, any court or governmental agency or body is
required in
connection
with the transactions contemplated herein and in the
Subscription
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Agreements, except such as have been obtained or made under the
Securities
Act or the
Exchange Act and such as may be required under the securities,
or blue
sky, laws of any jurisdiction in connection with the offer and
sale of
the Stock by the Company in the manner contemplated herein and
in
the Base
Prospectus and the Prospectus Supplement.
(m) Except as described in the
Base Prospectus and the Prospectus
Supplement, (i) no person has the right, contractual or otherwise,
to
cause the
Company to issue or sell to it any shares of Common Stock or
shares of
any other capital stock or other equity interests of the
Company,
(ii) no person has any preemptive rights, resale rights, rights
of first
refusal or other rights to purchase any shares of Common Stock
or
shares of
any other capital stock or other securities of the Company, and
(iii)
except as provided herein, no person has the right to act as an
underwriter, placement agent or financial advisor to the Company
in
connection
with and as a result of the offer and sale of the Shares, in
the case of each of the foregoing
clauses (i), (ii) and (iii), whether as
a result
of the filing or effectiveness of the Registration Statement or
the sale
of the Shares as contemplated thereby or otherwise; no person
has
the right,
contractual or otherwise, to cause the Company to register
under the
Securities Act any shares of Common Stock or shares of any
other
capital
stock or other securities of the Company, or to include any
such
shares or
interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness
of the
Registration Statement or the sale of the Shares as
contemplated
thereby or
otherwise, except for persons and entities who have expressly
waived
such right or who have been given timely and proper notice and
have
failed to
exercise such right within the time or times required under the
terms and
conditions of such right, and the Company is not currently
required
to file any registration statement for the registration of any
securities
of any person or register any such securities pursuant to any
other
registration statement filed by the Company under the Securities
Act
for a
period of at least 90 days after the date hereof.
(n)
The financial
statements, together with the related notes and
schedules,
of the Company included in the Base Prospectus, the Prospectus
Supplement
or the Registration Statement, or incorporated by reference
therein,
as the case may be, present fairly the financial condition,
results of
operations and cash flows of the Company and its consolidated
subsidiaries and other consolidated entities as of the dates and
for the
periods
indicated, comply in all material respects with the Securities
Act
and the
Rules and Regulations thereunder, and have been prepared in
conformity
with generally accepted accounting principles applied on a
consistent
basis throughout the periods involved.
(o)
Except as set
forth in the Base Prospectus and the Prospectus
Supplement, there is no legal or governmental proceeding pending to
which
the
Company or any of its subsidiaries is a party or of which any
property
or assets of the
Company or any of its subsidiaries is the subject which,
singularly
or in the aggregate, if determined adversely to the Company or
any of its
subsidiaries, would reasonably be expected to have a Material
Adverse
Effect or would prevent or adversely affect the ability of the
Company to
perform its obligations under this Agreement; and to the
Company's
7
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knowledge,
no such proceedings are threatened by governmental authorities
or
threatened by others.
(p)
The Company and
each of its subsidiaries have good and marketable
title to
all property (real and personal) described in the Registration
Statement,
the Base Prospectus and the Prospectus Supplement as being
owned by
the Company or its subsidiaries, free and clear of all Liens,
except for
those Liens that do not materially interfere with the use made
or
proposed to be made of such property by the Company or its
subsidiaries
or that
would not have a Material Adverse Effect; all the property
described
in the Registration Statement, the Base Prospectus and the
Prospectus
Supplement as being held under lease by the Company or a
subsidiary
is held thereby under valid, subsisting and enforceable leases
except
where the failure to be valid, subsisting or enforceable would
not
have a
Material Adverse Effect.
(q)
Neither the
Company nor any of its subsidiaries is (i) in violation
of any
provision of its charter or bylaws, (ii) in default in any
respect,
and no
event has occurred which, with notice or lapse of time or both,
would
constitute such a default, in the due performance or observance
of
any term,
covenant, or condition of any indenture, contract, lease,
mortgage,
deed of trust, note agreement, loan agreement or other
agreement,
obligation, condition, covenant or instrument to which it is a
party or
by which it is bound or to which any of its property or assets
is
subject,
or (iii) in violation in any respect of any statute, law, rule,
regulation, ordinance, judgment, order or decree of any court,
regulatory
body,
administrative agency, governmental body, arbitrator or other
authority
having jurisdiction over the Company, its subsidiaries or any
of
its
properties, as applicable (including, without limitation, those
administered by the Food and Drug Administration of the U.S.
Department of
Health and
Human Services (the "FDA") or by any foreign, federal, state or
local
governmental or regulatory authority performing functions similar
to
those
performed by the FDA), except, with respect to clauses (ii) and
(iii), any
violations or defaults which, singularly or in the aggregate,
would not
have a Material Adverse Effect.
(r)
The contracts
described in the Company's regular reports on Forms
10-Q,
10-K, and 8-K as filed by the Company with the Commission or
incorporated by reference therein
that are material to the Company are in
full force
and effect on the date hereof, and neither the Company nor, to
the
Company's knowledge, any other party to such contracts is in breach
of
or default
under any of such contracts which would have a Material Adverse
Effect.
(s)
No labor problem
or dispute with the employees of the Company exists
or, to the
Company's knowledge, is threatened or imminent, which would
reasonably
be expected to have a Material Adverse Effect. The Company is
not aware
that any key employee or significant group of employees of the
Company or
any subsidiary plans to terminate employment with the Company
or any
such subsidiary.
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(t)
Each of the
Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section
302 of
the United
States Employee Retirement Income Security Act of 1974
("ERISA")
and the regulations and published interpretations thereunder
with
respect to each "PLAN" (as defined in Section 3(3) of ERISA and
such
regulations and published interpretations) in which employees of
the
Company
and its subsidiaries are eligible to participate and each such
plan is in
compliance in all material respects with the presently
applicable
provisions of ERISA and such regulations and published
interpretations. No "PROHIBITED TRANSACTION" (as defined in Section
406 of
ERISA, or
Section 4975 of the Internal Revenue Code of 1986, as amended
from time
to time (the "CODE")) has occurred with respect to any employee
benefit
plan which could have a Material Adverse Effect. The Company
and
each of
its subsidiaries has not incurred any unpaid liability to the
Pension
Benefit Guaranty Corporation (other than for the payment of
premiums
in the ordinary course) or to any such plan under Title IV of
ERISA.
Each "PENSION PLAN" (as defined in ERISA) for which the Company
would have
any liability that is intended to be qualified under Section
401(a) of
the Code is so qualified in all material respects and nothing
has
occurred, whether by action or by failure to act, which could
cause
the loss
of such qualification.
(u)
The Company and
each of its subsidiaries carry, or are covered by,
insurance
in such amounts and covering such risks as is adequate for the
conduct of
their respective businesses and the value of their respective
properties
and as is customary for companies engaged in similar businesses
in similar
industries; all such insurance is fully in force on the date
hereof and
will be fully in force on the Closing Date.
(v)
The Company and
each of its subsidiaries has made all filings,
applications and submissions required by, and possesses all
approvals,
licenses,
certificates, certifications, clearances, consents, exemptions,
marks, notifications,
orders, permits and other authorizations issued by,
the
appropriate federal, state or foreign regulatory authorities
(including, without limitation, the FDA, and any other foreign,
federal,
state or
local government or regulatory authorities performing functions
similar to
those performed by the FDA) necessary to conduct its businesses
(collectively, "PERMITS"), and is in compliance with the terms
and
conditions
of all such Permits, except for such Permits which if not
obtained
or complied with would not have a Material Adverse Effect; all
of
such
Permits held by the Company and each of its subsidiaries are
valid
and in
full force and effect except as would not have a Material
Adverse
Effect;
there is no pending or threatened action, suit, claim or
proceeding
which may cause any such Permit to be limited, revoked,
cancelled,
suspended, modified or not renewed and the Company and each of
its
subsidiaries has not received any notice of proceedings relating
to
the
limitation, revocation, cancellation, suspension, modification
or
non-renewal of any such Permit which, singly or in the aggregate,
if the
subject of
an unfavorable decision, ruling or finding, would have a
Material
Adverse Effect, whether or not arising from transactions in the
ordinary
course of business, except as set forth in or contemplated by
the
Base
Prospectus or the Prospectus Supplement.
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(w)
Ernst &
Young LLP, who have certified certain financial statements
of the
Company and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Base
Prospectus, the Prospectus Supplement or the Registration
Statement, or
incorporated by reference therein, as the case may be, are
independent
public
accountants with respect to the Company within the meaning of
the
Securities
Act and the Rules and Regulations.
(x)
The Company and
each of its subsidiaries has filed all foreign,
federal,
state and local tax returns that are required to be filed or
has
requested
extensions thereof (except in any case in which the failure so
to file
would not have a Material Adverse Effect, except as set forth
in
the Base
Prospectus and the Prospectus Supplement) and has paid all
taxes
required
to be paid by it and any other assessment, fine or penalty
levied
against it, to
the extent that any of the foregoing is due and payable,
except for
any such assessment, fine or penalty that is currently being
contested
in good faith or as would not have a Material Adverse Effect,
except as
set forth in the Base Prospectus and the Prospectus Supplement.
(y)
The principal
executive officer and principal financial officer of
the
Company have made all certifications required by the
Sarbanes-Oxley
Act of
2002 and the rules and regulations promulgated in connection
therewith
(the "SARBANES-OXLEY ACT"), and the statements contained in any
such
certification are complete and correct. The Company maintains
"disclosure controls and procedures" (as defined in Rule 13a-15(e)
under
the
Exchange Act), and such controls and procedures are designed (i)
to
ensure
that information required to be disclosed by the Company in the
reports
that it files or submits under the Exchange Act is recorded,
processed,
summarized and reported, within the time periods specified in
the
Commission's rules and forms and (ii) to ensure that
information
required
to be disclosed by the Company in the reports that it files or
submits
under the Exchange Act is accumulated and communicated to the
Company's
management, including its principal executive officer and
principal
financial officer, as appropriate to allow timely decisions
regarding
required disclosure. There has been no fraud, whether or not
material,
that involves management or other employees who have a
significant role in the Company's internal controls. The Company
is
otherwise
in compliance in all respects with all applicable effective
provisions
of the Sarbanes-Oxley Act and the rules and regulations
promulgated by the Commission (and intends to comply with all
applicable
provisions
that are not yet effective upon effectiveness).
(z)
The Company and
each of its subsidiaries maintains a system of
internal
accounting controls sufficient to provide reasonable assurance
that (i)
transactions are executed in accordance with management's
general
or
specific authorizations; (ii) transactions are recorded as
necessary to
permit
preparation of financial statements in conformity with
generally
accepted
accounting principles and to maintain accountability of assets;
(iii)
access to assets is permitted only in accordance with
management's
general or
specific authorization; and (iv) the recorded accountability
for assets
is compared with
10
<PAGE>
the
existing assets at reasonable intervals and appropriate action
is
taken with
respect to any differences.
(aa)
The Company and each
of its subsidiaries (i) is in compliance in all
material
respects with any and all applicable foreign, federal, state
and
local laws
and regulations relating to the protection of human health and
safety,
the environment or hazardous or toxic substances or wastes,
pollutants
or contaminants ("ENVIRONMENTAL LAWS"), (ii) has received and
is in
compliance with all permits, licenses or other approvals required
of
it under
applicable Environmental Laws to conduct its business and (iii)
has not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or
toxic
substances or wastes, pollutants or contaminants, except where
such
non-compliance with Environmental Laws, failure to receive
required
permits,
licenses or other approvals, or liability would not,
individually
or in the
aggregate, have a Material Adverse Effect, whether or not
arising
from transactions in the ordinary course of business, except as
set forth
in or contemplated by the Base Prospectus and the Prospectus
Supplement
(exclusive of any supplement thereto). The Company has not been
named as a
"POTENTIALLY RESPONSIBLE PARTY" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as
amended.
(bb)
In the ordinary course
of its business, the Company periodically
reviews
the effect of Environmental Laws on the business, operations
and
properties
of the Company and each of its subsidiaries, in the course of
which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures
required
for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any
related
constraints on operating activities and any potential liabilities
to third
parties).
On the basis of such review, the Company has reasonably
concluded
that such associated costs and liabilities would not, singly or
in the
aggregate, have a Material Adverse Effect, whether or not
arising
from
transactions in the ordinary course of business, except as set
forth
in or
contemplated by the Base Prospectus and the Prospectus
Supplement.
(cc)
Except as set forth in
the Base Prospectus and the Prospectus
Supplement, the Company and its subsidiaries own, possess, license
or have
other
rights to use all foreign and domestic patents, patent
applications,
trade and
service marks, trade and service mark registrations, trade
names,
copyrights, licenses, inventions, trade secrets, technology,
Internet
domain names, know-how and other intellectual property
(collectively, the "INTELLECTUAL PROPERTY") necessary for the
conduct of
the
Company's business as now conducted or as proposed in the Base
Prospectus
and the Prospectus Supplement to be conducted. Except as set
forth in
the Base Prospectus and the Prospectus Supplement (a) there are
no rights
of third parties to any such Intellectual Property; (b) to the
Company's
knowledge, there is no infringement by third parties of any
such
Intellectual Property; (c) there is no pending or, to the
Company's
knowledge,
threatened action
